1. These are two connected appeals arising out of two suits. First Appeal No. 167 of 1943 arises out of Suit No. 37 of 1941 filed by Saiyid Sajjad Ali, the present appellant. The defendants to that suit were Saiyid Shahid Ali and Saiyid Zahid Ali, both brothers, the present respondents. This suit was for possession over a portion of plot No. 377 which had been, alleged to have been constructed upon by Shahid Ali respondent 1, for recovery of Rs. 500/- as the price of bricks and other materials utilised by the said Saiyid Shahid Ali in constructing his house, for the recovery of Rs. 100/- as price of the trees cut and appropriated by him, for damages for making pits in plot No. 377 and for a perpetual injunction restraining Saiyid Shahid Ali from interfering with the right of way of Saiyid Sajjad Ali through the plot in dispute.
2. The other appeal No. 478 of 1943 arises out of a Suit No. 536 of 1941 in which Saiyid Shahid Ali, respondent 1, was the plaintiff and Saiyid Sajjad Ali, the present appellant, was the main defendant and Saiyid Zahid Ali, present respondent 2, was impleaded as a pro forma defendant. The reliefs claimed in that suit were for possession over a portion of the same plot No. 377 over which it was alleged that Saiyid Sajjad Ali had constructed a stable, a garage and a latrine, for recovery of Rs. 450/- as amount of compensation on account of acts of Saiyid Sajjad Ali, for demolition of certain walls alleged to have been constructed in that plot by Saiyid Sajjad Ali and for an injunction restraining Saiyid Sajjad Ali from using the plot as a passage and further for restraining him from making construction of any sort on any other portion of the plot in dispute.
3. The learned Civil Judge has dismissed the suit of Saiyid Sajjad Ali and decreed the suit of Saiyid Shabid Ali for possession, demolition, injunction and part of the compensation claimed.
4. The parties to the two suits belong to one family. The respondents Saiyid Shahid Ali and Saiyid Zahid Ali are the sons of one Abid Ali and grandson of Mir Saiyid Abdulla. The appellant Saiyid Sajjad Ali is the grandson of Saiyid Wajid Ali and also the grandson from his maternal side of Wajid Ali's brother Wilayat Ali. Wajid Ali and Wilayat Ali were the sons of Saiyid Asghar Ali who was the own brother of Saiyid Abdulla, the grandfather of the respondents.
5. The property in dispute is a plot of land now numbered as 377 situated in Mohalla Zafra Bazar in the city of Gorakhpur. To the north of this plot are several plots NOS. 383, 367, 368 and 376. It is admitted that plot No. 383 belongs exclusively to respondent l, Saiyid Shahid Ali, It is also common case of the parties that in plot NOS. 368 and 376 there are houses which are now in the occupation of Saiyid Sajjad Ali, the appellant. According to respondent 1, Saiyid Shahid Ali, the laud underneath these houses is joint whereas according to Saiyid Sajjad Ali it belongs exclusively to him. According to him the house on plot No. 368 was constructed by his paternal grand-father Saiyid Wajid Ali and the house on plot No. 376 was constructed by his maternal grand-father Saiyid Wilayat AH. The case of the appellant is that plot No. 377 which is to the south of plot NOS. 376, 368 and 383 belongs exclusively to him as it is appurtenant to the two houses which have been constructed on plots Nos. 376 and 368 and that it is not appurtenant to plot No. 383 and does not belong to Saiyid Shahid Ali. On the other hand, the case of Saiyid Shahid Ali is that the plot exclusively belongs to him and his brother Zahid Ali.
6. The learned Civil Judge held that the plot belongs to Saiyid Shahid Ali and Saiyid Zahid Ali, respondents.
7. The appellant's case further was that even if he was not the owner of the plot, he and his ancestors Saiyid Wajid Ali and Saiyid Wilayat Ali have been in adverse possession of the plot for a long period of over twelve years and, therefore, he was the owner of the plot by adverse possession. His case further was that, at any rate, he had a right of way through a passage over plot No. 377 from its eastern gate T leading to his houses on plots NOS. 368 and 376, which passage had been blocked by respondent Shahid Ali by making constructions on a portion of plot No. 377 to the south of plot No. 383 within a year of the filing of the suit.
8. Saiyid Shahid Ali's case was that Saiyid Sajjad Ali had constructed the stable, motor garage and the latrine towards the south-west corner of the house in plot No. 376 very recently and that this was done without any right.
9. The learned Civil Judge came to the conclusion that the adverse possession of Saiyid Sajjad Ali or his ancestors was not proved. He further came to the conclusion that Saiyid Sajjad Ali could not be said to possess a right of way over plot No. 377 from the east.
10. Three points have been urged before us in the two appeals. It has been contended that the learned Civil Judge was wrong in coming to the conclusion that Saiyid Shahid Ali and Saiyid Zahid Ali were the owners of plot No. 377. It has next been urged that, in any case, Saiyid Sajjad Ali and his ancestors were in adverse proprietary possession of the plot. Lastly, it has been urged that the right of passage from the east over plot No. 377 has been fully established and should have been granted. (His Lordship held on evidence that apart from the question of adverse possession the title to the plot No. 377 vested in the respondents and proceeded:)
11-14. As regards the plea of adverse possession, the evidence adduced by the appellant taken at its face value proves the following facts. In the year 1915, Saiyid Wajid Ali made an application for permission to construct a boundary wall in the plot in dispute. It appears that this boundary wall was not constructed. Later, in the year 1920, a fresh application was made and sanction was granted. It appears that a boundary wall was constructed soon afterwards. In the eastern boundary wall, a gate was opened. That gate is shown as T in the Commissioner's map. It further appears that there was a kachcha passage running from the eastern gate T up to the verandah in the house on plot No. 368. It is also in evidence that, Saiyid Wajid used to sit in this verandah or outside it under a tree and that sometimes the passage leading from gate T to this verandah was used. It further appears that a wall shown KH in the Commissioner's map between plots Nos. 383 and 377 was also constructed. When it was contracted does not appear from the record. It may be assumed that it was also constructed by Saiyid. Wajid Ali. It further appears that trees were planted by either Saijid Wajid Ali or Saiyid Wilayat Ali on portions of the plot in dispute. If there were no other facts to explain these acts of user by Saiyid Wajid Ali and Saiyid Wilayat Ali we might have been led to the conclusion that Saiyid Wilayat Ali and Saiyid Wajid Ali were in adverse possession over this plot. In the present case, however, it is in evidence of the appellant's own witnesses that the entire family property was managed first by Saiyid Wilayat Ali and after his death in 1923 or 1924 by Saiyid Wajid Ali who died in the year 1938. It is also admitted by the appellant's witnesses that the entire family used to mess at one place under the directions of Saiyid Wilayat Ali or Saiyid Wajid Ali. It is further admitted by the parties that the ladies of the family still live in a joint house which is to the north-west of the houses on plots Nos. 376 and 368. This is, therefore, a case in which a Muhammadau family had been living almost like a Hindu family. The income from the properties belonging to the members appears to have been pooled at one place and was under the control of Saiyid Wilayat Ali and Saiyid Wajid Ali so long as they lived. There is no evidence on record to show how the expenses in constructing the boundary walls on plot No. 377 were met. It is possible that Saiyid Wilayat Ali and Saiyid Wajid Ali, who must be deemed to have realised the income of the property of the respondents' share, may have constructed the walls with that income. At any rate, in circumstances like these, it cannot be presumed that they intended to exercise acts hostile to the very persons whose managers they were. In these circumstances, it cannot be said that the acts of user mentioned above over the plot in dispute were such as to amount to adverse possession. In order to prove adverse possession, it is necessary to show that the person claiming adverse possession had an animus to possess a thing in his own right against the right of the rightful owner. It is well known that a trustee is, under no circumstances, allowed to set up a title adverse to his cestui que trust, (See Lewin on Trust 14th Edn., p. 217). In a case in which the person in possession is a manager, or an agent, or stands in some other fiduciary relationship with the owner, such animus will not be readily presumed and, so long as he does not divest himself of that character, his possession will be attributed to the consent, express or implied, of the rightful owner.
15. Learned counsel appearing for the appellant has cited before us the case of Devi Ditta Ram v. Waryam, A. I. R. (16) 1926 Lah. 526 : (117 I. C. 81) and Abdul Rashid v. Sirajuddin : AIR1933All206 , in support of his contention. The case reported in Devi Ditta Rarn v. Waryan, A.I.R. (16) 1929 Lah. 526 : (117 I. C. 8l) was a case inwhich a person had enclosed a piece of land belonging to another and had used it for throwing rubbish. It was held that the action of enclosing the plot amounted to adverse possession. That was not a case of a manager exercising acts of adverse possession. In the case reported in Abdul Rashid v. Sirajuddin : AIR1933All206 , a Bench ofthis Court laid down a principle which applies to acquisitions by members of a Muslim family intheir own names when those members live jointly very much like a Hindu joint family. It washeld that the acquisitions do not belong to all the members but that they belong to those inwhose names they are made. There is no dispute about the correctness of the principle laiddown in that case. The question is whether it applies to the facts of the present case. Even ifwe assume that the boundary walla were constructed by Saiyid Wajid Ali out of the fundswhich were in his hands we cannot assume that those funds were his exclusive property and wecannot, therefore, assume that by the construction of the walls Saiyid Wajid Ali intended to acquirethe plot for his own benefit. When a trustee or another person holding a fiduciary characterwho is in possession of funds belonging to him self as well as the trust acquires property in hisown name and it is not established that in the acquisition of the property he has utilised thetrust funds, it cannot be said that the acquisition was made for the benefit of the trust.Where, however, such a trustee holding trust funds as well as his own funds spends moneyin making constructions over the property of the trust the presumption is that he is spendingthe money belonging to the trust for the improvement of the trust property. There is nopresumption that the expenditure was made from his own funds or that the constructions were made in breach of faith in order to make the property his own. This is so because the law presumes honesty and lawfulness in place of dishonesty and illegality. Applying this principle to the present case, the acts of Wilayat Ali and Wajid Ali in enclosing the plot in dispute with a boundary wall need not necessarily be ascribed to their desire of making the plot their own property in breach of faith with the respondents whose property they managed.
* * *
16-17. We are of opinion that the learned civil Judge was right in arriving at the conclusion that the adverse possession of the plaintiff or his ancestors could not be held to be proved in the present case.
18. It has next been urged that, in any case, it has been established that the plaintiff and his ancestors have been using the passage from the gate T to the house in plot No. 368 for over twenty years and the lower Court should have granted the appellant the relief which was claimed by him in this regard and should not have granted a decree to respondent 1. It may be assumed that from gate T there was a kachcha passage leading up to the house in plot No. 368, but the question is whether the plaintiff or his predecessors acquired a right of way thereon. It has to be observed that a right of way can be acquired either by grant or by prescription. In the present case, there is no proof of any grant having been made. If the right of way is alleged to have been acquired by prescription it must be proved to have been enjoyed 'as of right' for the prescribed period, vide Section 15, Easements Act. As we have already observed Saiyid Wilayat Ali and Saiyid Wajid Ali being the managers of the property of the respondents could not be supposed to have exercised a right against the interest of the respondents. Such user as has been proved in the present case would not be minded by any person in the position of the respondents. We cannot say that the use of the land as a passage was made 'as of right'. We think that it should be presumed that it was merely permissive. Furthermore, it is admitted that the main passage to the houses of the parties lies in the north. Prom the Commissioner's map it appears that there is a gate in the north which leads to the house constructed on plot No. 368. There was, therefore, no difficulty in using the house by the passage to the north. All that is proved from the statement of the witnesses produced on behalf of the appellant is that when Saiyid Wajid Ali used to sit in his verandah or in the open under a tree persons sometimes came to visit him from the eastern gate T. This kind of user of the land can hardly be called a right of way attached to house No. 368 or any other house. In the circumstances we do not consider that the appellant proved any right of way over the land in dispute.
19. We, therefore, consider that the decrees passed by the Court below were justified. Both the appeals are consequently dismissed with costs.